KRAMER v. UNITED FEDERATION OF TEACHERS

MARK J. KRAMER, PLAINTIFF, AGAINST UNITED FEDERATION OF TEACHERS-OFFICE OF GENERAL COUNSEL, DEFENDANT.

The opinion of the court was delivered by: Douglas F. Eaton, United States Magistrate Judge.

OPINION AND ORDER

In 2002, pro se plaintiff Mark J. Kramer brought a Title VII charge of discrimination, and then this Title VII lawsuit, against his union, the United Federation of Teachers ("UFT's or "the Union"). In his Complaint, he alleges that various supervisors discriminated against him because of his religion (Jewish) and then fired him in 1994, and that the Union did not do enough to help him. On March 7, 2003, the Union moved to dismiss the Complaint on various grounds. I find that the case is time-barred by the 300-day statute of limitations governing Title VII actions.

BACKGROUND

The following allegations are set forth in Kramer's 4-page addendum to his Complaint, which is entitled "Facts of the Case" and annexes several exhibits.

Kramer has masters degrees in education and mathematics from Queens College and Long Island University. He also has dual New York City licenses to teach elementary and middle school mathematics.

From September 1988 through June 1989, Kramer worked as a math teacher at JHS 162K middle school. He claims that he was given a satisfactory "S" for a final evaluation, but that he was not officially appointed because Jack Zatt, the assistant principal and plaintiff's math supervisor, "took a dislike to me immediately, as he was anti-Semitic and saw me as an adversary." Kramer alleges that he asked the Union for help, but it "did not do anything."

In September. 1989, Kramer was appointed to a new position as an elementary teacher at IS 75K. However, the Principal, Ivy Causo, fired him two months later, after she met with Zatt. Kramer claims that he "went to the Brooklyn UFT, but they did not do anything to help me rectify the situation.

Kramer says: "I worked in many districts earning credits toward my probation time in teaching. In 1990 I applied and received Jarema Credit (the 2 of 3 years credit needed for probation completion.)" In August 1990, he was assigned to IS 126 as a mathematics teacher under Principal Mildred Vogt and a math supervisor named Mr. Bader. Kramer alleges:

This was to be my final year of probation toward
completing the required 3 years. Tenure was to be
granted at the end of the completion — June
1991. As the year neared its end, Ms. Vogt inquired,
through Mr. Bader, as to what religion I was. He asked
me and I told him, thinking no harm. Soon after,
Principal Vogt went out on sick leave for six weeks.
Barbara Embriano came in as assistant principal and my
math supervisor. She was put in by Superintendent
Gimonda who had found out that I was Jewish and was up
for tenure. Mr. Bader told me that Ms. Embriano "gets
rid of people." Prior to her leaving for sick leave,
Ms. Vogt had told me and the UFT rep that I would
receive tenure a Satisfactory rating on my final
performance evaluation.

Before Ms. Vogt left for sick leave, I was a homeroom
teacher taking daily attendance in the morning. A few
times I noticed that the daily absence sheets were
being changed upon their return to me. I questioned
Ms. Vogt about it and before I knew it, she had taken
the daily attendance job away from me. . . . While
Ms. Embriano was in the position of supervising me,
she told me, "Even if you did do well, I'm going to
say you did badly . . ." . . . I spoke to the UFT's
rep downtown, Larry Leftig, and he said he'd get
someone to visit me in the school. However, no one
ever did come to check out the situation.

Upon Ms. Vogt's return to school in June, she gave
me a final Satisfactory evaluation. However, it was
then fraudulently altered by Ms. Embriano. I observed
Ms. Embriano physically force Ms. Vogt's hand to "white
out" the final and overall "S" in the bottom of the
sheet and change it to a "U" despite all the categories
that were satisfactory. . . .

The UFT did not step in to help me. They should
have definitely acknowledged that I was tenured and
informed Superintendent Gimonda that he could not
commit fraud in altering an official document or
forcing an assistant principal to do so.

From September 1991 through June 1992, Kramer tried to get various teaching jobs, but to no avail. He hired an attorney, who filed an Article 78 proceeding against the New York City Board of Education and its Chancellor, attacking the "U" rating. The case was resolved with a September 1999 Stipulation of Settlement, which is annexed to the Complaint. The Stipulation of Settlement provided that Kramer was restored to the position of probationary teacher as of September 8, 1992 for one year; Kramer agreed to "deliver a signed release to respondents", releasing the Board of Education "from any and all liability . . . in any way related to, in whole or in part, the subject matter of the above mentioned action."

In September 1992, Kramer was assigned to JHS 141. He says:

A few days into my job at JHS 141, the Union rep,
Metzger, who shared my homeroom, told me that the
administration was going to give me an Unsatisfactory
rating for no reason. . . . As time progressed into
the second month of school, I was constantly being
called in, on my lunch periods, to meet with [Assistant
Principal] Petrocelli about petty questions. At one
point I overheard . . . Petrocelli talking on the phone
to the Superintendent. He came storming out of the
office screaming, "He can't threaten my pension!" He
then looked at me and called me a "dirty Jew" and said
"Things are going to change as I'm fed up with you. It
will end here with no chances of you working again."
[Petrocelli] never observed me for the Professional
Performance Review and still [he] gave me the
Unsatisfactory rating. . . . I filed a grievance
against Principal Tomaselli who had also been
"harassing" me. . . . I tried to file a grievance
against the Superintendent but the UFT wouldn't allow
me to. Again I called the union rep of the district,
Jeff Zahler, but he was not able to help. He even told
my wife that a person working in that district should
have a name ending in "I" or "O" only.

Kramer's April 28, 2003 letter to me rephrases this last comment as follows:

The Union Representative, Jeffrey Zahler, had told
my wife that if your name ends in "i" or "o" you would
have a permanent job in that district.

If Zahler did make such a comment, it was clearly sympathetic to Kramer, and not antagonistic to Kramer's Jewish religion.

From November 1992 through January 1993, Kramer became physically ill and stayed home. In January 1993, Superintendent Gimonda advised him that the Community School Board planned to meet in February to have him dismissed. Kramer says:

The UFT put in for another Chancellor's Hearing. It
was scheduled for a year later! In January 1994. The
Union knew that I had to work and needed a job. They
had me wait a whole year to get a hearing. . . . The
UFT rep tried to have me win by default, but the head
Union people wouldn't let him do that. The "hearing"
was finally held in March 1994. In attendance were
personnel director Barrish, Assistant Princpal
Petrocelli, Principal Tomaselli of 141, a union rep, 3
peer reps plus myself. . . . The hearing was not tape
recorded as [the] Union mandates.

Kramer moved to Florida, apparently in 1993 or 1994. "Shortly after this [March 1994] hearing," Kramer "was officially let go."

Eight years later, on March 7, 2002, Kramer filed, with the Florida Human Rights Commission (Broward County Division), a charge of discrimination against the Union. (A copy is annexed to Kramer's 3/17/03 affirmation.) On July 17, 2002, he received a Right to Sue Letter, from the U.S. Equal Employment Opportunity Commission ("EEOC"), which said, "the EEOC is unable to conclude that the information obtained establishes violations of the statute." On September 25, 2002, the Pro Se Office of our Court received Kramer's Complaint. On November 8, 2002, the Complaint was docketed by the Clerk's Office and assigned to District Judge William H. Pauley III. Upon the parties' consent, the case was reassigned to me for all purposes. On March 7, 2003, the Union served its motion to dismiss. On March 17, Kramer served opposing papers. On April 24, the Union served a reply memorandum.

Normally, the rules do not permit a sur-reply. Nevertheless, plaintiff sent me a letter dated April 28. It begins by making what he acknowledges to be a "technical" point, arguing that the Union's reply memorandum should be time-barred because he received it on April 26 rather than on April 25. My March 11 order said that the reply, if any, should be "served" (i.e., mailed) by April 24. Although I am not certain, it may be that the Union mailed to plaintiff on April 25; in any event, there was no prejudice since the Union used Express Mail. Hence I deem the Union's reply to be timely. Plaintiff's April 28 letter ends as follows:

I apologize for this lengthy summary. If at all
allowable, I ask the court for a chance to continue
this [sur-]reply.

I deny the request to continue the sur-reply. On the other hand, I will direct the Clerk to docket the April 28 sur-reply letter, and I have considered its arguments.

DISCUSSION

The Union makes three arguments for dismissal of the Complaint: (1) that it is time-barred because plaintiff did not file it within 90 days of his receipt of the EEOC's Right to Sue letter; (2) that it is time-barred because plaintiff did not timely file a charge of discrimination; and (3) that it fails to plead the elements of a Title VII claim against a union.

I disagree with the Union's first argument. Our Pro Se Office stamped Kramer's Complaint as received on September 25, 2002. Our Court deems a pro se complaint to be filed on the day it is received by the Court's Pro Se Office. Fletcher v. Runyon, 980 F. Supp. 720, 721 (S.D.N.Y. 1997) (Rakoff, J.) (Peck, M.J.) citing cases, including Toliver v. County of Sullivan, 841 F.2d 41, 42 (2d Cir. 1988). In its reply papers, the Union acknowledges Toliver, but asks me to distinguish it on the ground that Kramer was not granted in forma pauperis relief. I decline to do so. Kramer paid the $150 filing fee on October 10, 2002, which is shown by the pink receipt in the file. The docket sheet gives the misleading impression that the fee was paid on November 8, 2002, but that delay was attributable solely to a routine review in the Pro Se Office, resulting in the Docketing Clerk's stamping of the Complaint with an official filing date of November 8, 2002.

The Union's second argument is clearly correct. The United States Supreme Court recently wrote as follows:

. . . .Title 42 U.S.C. § 2000e-5(e)(1) is a charge
filing provision that "specifies with precision" the
prerequisites that a plaintiff must satisfy before
filing suit. Alexander v. Gardner-Denver Co.,
415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). An
individual must file a charge within the statutory time
period and serve notice upon the person against whom
the charge is made. In a State that has an entity with
the authority to grant or seek relief with respect to
the alleged unlawful practice, an employee who
initially files a grievance with that agency must file
the charge with the EEOC within 300 days of the
employment practice; in all other States, the charge
must be filed within 180 days. A claim is time barred
if it is not filed within these time limits.

For our purposes, the critical sentence of the charge
filing provision is: "A charge under this section
shall be filed within one hundred and eighty days
after the alleged unlawful employment practice
occurred." § 2000e-5(e)(1) (emphasis added). The
operative terms are "shall," "after . . . occurred,"
and "unlawful employment practice." "[S]hall" makes
the act of filing a charge within the specified time
period mandatory. See, e.g., Lexecon Inc. v. Milberg
Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35, 118
S.Ct. 956, 140 L.Ed.2d 62 (1998) ("[T]he mandatory
`shall,' . . . normally creates an obligation
impervious to judicial discretion"). "[O]ccurred"
means that the practice took place or happened in the
past. The requirement, therefore, that the charge be
filed "after" the practice "occurred" tells us that a
litigant has up to 180 or 300 days after the unlawful
practice happened to file a charge with the EEOC.

National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109-10, 122 S.Ct. 2061, 2070 (June 10, 2002). In the case at bar, the alleged unlawful employment practice was that the Union allegedly failed to give Kramer fair representation at the March 1994 hearing, which was the last chance to save his employment. Hence, Title VII required him to file a charge of discrimination within 300 days of the March 1994 hearing or, at the very latest, within 300 days of his termination, which occurred shortly after that hearing. Instead, he waited until March 2002.

Kramer gives the following inadequate excuse for his eight-year delay:

11. Plaintiff did not file an EEOC charge in 1994
or earlier when UFT failed to assist him in securing
his position as is their job to do so because Plaintiff
was not informed about EEOC availability. However,
since he was permanently appointed and tenured, he
could not be removed at all from his job, therefore
there is no time-barrier to seek EEOC assistance.

(Kramer's 3/17/03 aff., ¶ 11.) His first sentence seems to claim that, until 2002, he was unaware of the "availability" of the EEOC, or Title VII, or the Florida Human Rights Commission. Assuming this to be true, ignorance of the law is not an excuse. His second sentence is based on his September 1992 Stipulation of Settlement. He annexes a copy to his Complaint; it reads in part as follows:

2. Petitioner [Kramer] has been restored to the
position of probationary teacher as of September 8,
1992, on condition that petitioner shall deliver a
signed release to respondents no later than September
21, 1992.

3. Petitioner will serve as a probationary teacher for
one year, or until September 8, 1993.

Kramer says that he reneged on his promise to deliver a signed release. In a hand-printed note on the second page of the copy of the Stipulation, Kramer tells our Court:

I never gave a signed release to a lawyer or
respondents. Therefore, probation was never extended
beyond 1991 and I was a tenured teacher. So contract
is definitely invalid.

This argument for tenure is frivolous. The plain fact is that Kramer's employment with the New York City Board of Education ended in 1994.

As a last resort to avoid the 300-day stature of limitations, Kramer claims that he can still seek damages for 1994 because the Union continued to fail to help him as late as December 2001. In his April 28, 2003 letter to me, Kramer implies that this "continuing violation" theory was stated to him by a "senior representative" of the Florida Human Rights Commission who helped him to draw up his charge of discrimination in March 2002.

In June 2002, however, the Supreme Court issued the Morgan decision. In Morgan, the Supreme Court refused to apply the "continuing violation" doctrine to "acts such as termination, failure to promote, denial "of transfer, or refusal to hire [which] are easy to identify." Morgan, 122 S.Ct. at 2073. It was always "easy" for Kramer to "identify" the acts for which he now wants damages. Those acts were the Union's alleged failure to give him fair representation after his September 1992 settlement, especially at the March 1994 hearing, which was quickly followed by the official termination of this employment. The ticking of the 300-day "clock" mandated by Congress was unaffected by the fact that Kramer may have continued to write "almost annually to the UFT for assistance in clearing his name and securing a future." (Kramer's 3/17/03 aff., second page.) Such letters do not toll the statute of limitations.

It is unnecessary to rule on the Union's third argument.

CONCLUSION

Kramer's case is time-barred by the 300-day statute of limitations. I grant the defendant's motion to dismiss the Complaint with prejudice. (For the benefit of the pro se plaintiff, I advise him that the legal phrase "with prejudice" means that he may not bring any new lawsuit making these allegations.) I direct the Clerk of the Court to close this case.

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